2018 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (30 pages)

            Joe Lopez appeals his conviction for first-degree murder.  Lopez claims insufficient evidence supports his conviction, the district court should have admitted evidence of his willingness to take a polygraph, the district court should have excluded the medical examiner’s manner-of-death testimony, the prosecutor committed error by mischaracterizing expert testimony in closing arguments, and counsel was ineffective for failing to object to prior-bad-acts evidence and failing to request or object to the omission of a jury instruction defining reasonable degree of medical certainty.  OPINION HOLDS: We find Lopez’s conviction supported by sufficient evidence.  Further, the district court did not abuse its discretion in excluding evidence of Lopez’s willingness to take a polygraph, nor in admitting Dr. Schmunk’s manner-of-death testimony.  Lopez failed to demonstrate he was prejudiced by the prosecutor’s statements.  And finally, concerning Lopez’s ineffective-assistance claims, we preserve his prior-bad-acts claim for postconviction relief and find no breach of duty for counsel’s lack of request or objection to the omission of an instruction defining reasonable degree of medical certainty.

            Appeal from the Iowa District Court for Chickasaw County, Kellyann M. Lekar and Richard D. Stochl, Judges.  AFFIRMED.  Considered by Danilson, C.J., Vogel, J., and Mahan, S.J.  Opinion by Mahan, S.J.  Dissent by Danilson, C.J.  (8 pages)

            Dustin Devries appeals his convictions for theft in the second degree and absence from custody, claiming the district court erred in denying his motion to suppress evidence found on his property during a warrantless search.  OPINION HOLDS: Upon our review, we affirm the district court’s denial of Devries’ motion to suppress.  DISSENT ASSERTS: I respectfully dissent from the determination of the majority that the officers were in a place they were legally entitled to be.  Without a valid premise of legal entitlement, the warrant cannot stand.   

            Appeal from the Iowa District Court for Dubuque County, Monica Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (11 pages)

            Justin Swan appeals the dismissal of his application for postconviction relief.  OPINION HOLDS:  We find the trial court substantially complied with Iowa Code section 822.7 (2010), Swan’s mandatory minimum sentence does not amount to cruel and unusual punishment, and Swan’s claims of ineffective assistance of counsel fail.

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (14 pages)

            Marvin Heggebo appeals from his conviction and sentence for second-degree sexual abuse following jury trial.  Heggebo contends the trial court erred in admitting statements the child witness made to her mother and in admitting the video recording of the child’s interview at the Child Protection Center.  OPINION HOLDS: Because we conclude the statements and video were properly admitted, we affirm.

            Appeal from the Iowa District Court for Polk County, David N. May and Donna L. Paulsen, Judges.  CONVICTIONS AFFIRMED; SENTENCING ORDER VACATED IN PART AND REMANDED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (11 pages)

            Todd Landis challenges his convictions for operating while intoxicated (OWI) and possession of a controlled substance arguing the drug evidence should have been excluded when police searched his pocket thirty minutes before arresting him for the OWI.  He contends this search was not substantially contemporaneous with his arrest.  He also challenges the rationale given for his sentence and the sentence imposing court costs on a dismissed simple misdemeanor charge.  OPINION HOLDS: The evidence would have been admissible under the inevitable-discovery doctrine.  The court gave sufficient individualized rationale to explain the sentencing decision.  But the district court should not have imposed court costs from a dismissed charge in the sentencing order.  We vacate that part of the order and remand for entry of a corrected order.  We affirm defendant’s convictions. 

            Appeal from the Iowa District Court for Polk County, David May and Robert J. Blink, Judges.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Glenn Webster appeals his convictions of two drug-related crimes, contending the district court erred in denying his motions to dismiss and for judgment of acquittal.  OPINION HOLDS: We affirm the denial of the motion to dismiss on the ground urged by the State below, that the motion was untimely.  We find the evidence sufficient to establish the challenged elements of the possession-with-intent-to-deliver charge beyond a reasonable doubt.  We affirm Webster’s convictions. 

            Appeal from the Iowa District Court for Buchanan County, Joel Dalrymple, Judge.  AFFIRMED IN PART; REVERSED IN PART AND REMANDED.  Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.  Opinion by Blane, S.J.  Special Concurrence by Potterfield, P.J.  (23 pages)

            Dennis Chamberlain appeals his convictions, sentences, and judgments for attempt to commit murder, kidnapping in the second degree, and two counts of intimidation with a dangerous weapon with intent.  He challenges the district court’s jury instructions regarding intoxication, reasonable doubt, and the definition of “confinement,” as well as the extension of the no-contact order for a period longer than five years.  OPINION HOLDS: We affirm Chamberlain’s convictions for attempt to commit murder and two counts of intimidation with a dangerous weapon with intent.  We reverse his conviction for kidnapping in the second degree and remand for retrial.  We also reverse a provision of the extension of the no-contact order and remand for correction.  SPECIAL CONCURRENCE ASSERTS: I disagree with the majority’s conclusion there was insufficient evidence to submit Chamberlain’s proposed instruction on the defense of intoxication.  The majority fails to make the distinction between the requisite amount of evidence necessary to determine whether a trial court should submit an affirmative defense to the jury and the amount of evidence necessary to prove the defense. However, the evidence of Chamberlain’s ability to form specific intent was overwhelming, and I cannot find Chamberlain suffered prejudice from the court’s failure to instruct on Chamberlain’s defense to the intent elements of those crimes.

            Appeal from the Iowa District Court for Pottawattamie County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (6 pages)

            Michael Weiss appeals the denial of his application for postconviction relief.  OPINION HOLDS: Weiss has failed to prove prejudice, and his ineffectiveness claim thus fails. 

            Appeal from the Iowa District Court for Emmet County, Ann M. Gales, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  (5 pages)

            Following a conviction for operating while intoxicated, first offense, Clarence Blanchard appeals the district court’s denial of his motion to suppress.  Blanchard argues there was neither a reasonable articulable suspicion nor probable cause to support the police officer’s investigatory stop of his vehicle.  OPINION HOLDS: Considering the totality of the circumstances, Deputy Bauler’s recognition of the smell of marijuana emanating from Blanchard’s vehicle provides a reasonable suspicion of criminal activity to stop the vehicle approximately twenty minutes later.  We affirm the district court’s denial of Blanchard’s motion to suppress.

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (4 pages)

            Michael Lamont Black appeals the district court’s denial of his application for postconviction relief (PCR).  He claims his trial counsel’s erroneous advice compelled him to plead guilty.  OPINION HOLDS: Black has not shown his plea counsel misinformed him about his plea.  Therefore, he has not proven his counsel breached an essential duty, and we affirm the district court’s denial of his PCR application.

           Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J. (5 pages)

            Undray Jermaine Reed appeals the district court’s denial of his application for postconviction relief (PCR).  He claims his trial counsel was ineffective by not objecting to the prosecutor’s questioning on cross-examination of Reed’s prior criminal convictions of theft, burglary, and a “felony.”  OPINION HOLDS: Reed did not prove the district court would have excluded evidence of the felony if his counsel had objected, and use of the felony for impeachment did not result in prejudice.  Additionally, Iowa has long recognized theft and burglary are crimes of dishonesty and admissible for impeachment.

            Appeal from the Iowa District Court for Bremer County, Christopher C. Foy, Judge.  CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART AND VACATED IN PART AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Dale Robert Tournier appeals his conviction and sentence for second degree sex abuse of a child under twelve, raising claims of district court abuse of discretion and fee imposition error.  OPINION HOLDS: We discern no abuse of discretion in the district court’s denial of a new trial and refusal to vacate the judgment and take new testimony.  We conclude the court’s failure to specify the amount of the jail fee was an abuse of discretion.  We vacate the portion of the sentence imposing an obligation to pay the jail fees and remand for a determination of Tournier’s ability to pay a specified amount.  We affirm the balance of the sentence.